viii INDEX. Reversionary interest of wife in personal property, 212. Responsibility of attorney-ignorance-negli- Solicitor and client-purchase-fraud-conceal- Where a court of equity will direct an action or Bargain and sale of goods not in possession, ib. Executors' assent, 253. Trover-special damage, 293. Malicious prosecution-reasonable or probable cause, 34. Insurance without insurable interest, 371. U.S. CIRCUIT COURT New Rules in Equity in the Circuit Court for the Southern District of New-York on motions for injunctions, 228. THE New York Legal Observer. VOL. IV. NEW YORK, JANUARY, 1846. CONTRACTS OF INFANTS. THAT an infant is liable upon his contract, MONTHLY PART. fendant's order conducted the funeral of her husband, and that the husband had left no property to be administered. Upon this arose the question, was the infant widow hound by her contract for the final expenses of her husband? After time taken to consider, the judgment of the court was delivered by Alderson, B., and the process. of reasoning by which the court came to the conclusion, that by analogy with and inferentially from the authorities already stated, the defendant was liable on her contract, can only be understood by an extract from the judgment itself. "This is the case of an infant widow, and the burial that of her husband, who has left no property to be administered. Now the law permits an infant to make a valid contract of marriage, and all necessaries furnished to those with whom he becomes one person by or through the contract of marriage, are, in point of law, necessaries to the infant himself. Thus a contract for necessaries to an infant's wife and lawful children is used by Lord Bacon as one of the illustrations of the maxim, persona conjuncta æquiparatur interesse propria. The learned baron, after citing the passage from Bacon's Law Maxims already given, and laying down the rule that decent Christian burial may be classed as a personal advantage, and reasonably necessary to a man, thus continues: "If then this be so, the decent Christian burial of his wife and lawful children, who are the persona conjuncta with him, is also a personal advantage, and reasonably necessary to him; and then the rule of law applies, that he may make a binding contract for it. This seems to us to be a proper This brief statement of the different classes and legitimate consequence, from the propoof necessaries will suffice to introduce the sition that the law allows an infant to make case of Chapple v. Cooper, 13 M. & W. 252, a valid contract of marriage. If this be corin which an entirely new question, with re-rect, then an infant husband or parent may ference to the liability of an infant, came before the Court of Exchequer. The declaration was in the ordinary form for work, labor, and materials. To this the defendant pleaded infancy, and the replication stated that the goods were necessaries. It appeared that the plaintiff, being an undertaker, had by the de 1 contract for the burial of his wife or lawful children; and then the question arises, whether an infant widow is in a similar situation? It may be said that she is not, because during the coverture she is incapable of contracting, and after the death of the husband the rela tion of marriage has ceased. But we think (1) Practical Points.-Copyright in Foreigners-Tenant for Life. this is not so. In the case of the husband, the contract will be made after the death of the wife or child; and so after the relation which gives validity to the contract is at an end for some pur poses. But if the husband can contract for this, it is because a contract for the burial of those who are persona conjuncta with him by reason of the marriage, is as a contract for his own personal benefit, and if that be so, we do not see why the contract for the burial should not be the same as a contract by the widow for her own personal benefit. Her coverture is at an end, and so she may contract, and her infancy for the above reasons is no defence, if her contract be for her own personal benefit. It may be observed, that, as the ground of our decision arises out of the infant's previous contract of marriage, it will not follow from it that an infant child or more distant relation would be responsible upon a contract for the burial of his parent or relative." Practical Points. COPYRIGHT IN FOREIGNERS. Ir appears by a decision in the English courts, that an alien, resident abroad, who composes a work abroad, but publishes it first in England, is entitled to the full benefit of such copyright. In the case of Bentley v. Foster, 10 Sim. 329, the question came before the Vice Chancellor of England, who thus expressed himself: "In my opinion protection is given by the law of copyright to a work first published in this country, whether it was written abroad by a foreigner or not; if an alien friend writes a book, whether abroad or in this country, and gives the British public the advantage of his industry and knowledge, by first publishing the work here, he is entitled to Out of this decision are evolved two points the protection of the laws relating to copyright for the first time decided, for it is obvious in this country; but as the question which that two steps must be taken by the court to has been discussed is a legal one, I shall dicome to the conclusion at which it arrived. rect the plaintiff to bring an action within 1st. Every man's right to be decently in- three weeks, for the purpose of trying his terred will hardly be denied; but does the right, and shall continue the injunction in the consequence follow that a man's funeral ex-meantime." An action was accordingly penses are necessaries for him, for which an brought, but the defendant consented to a infant may be made liable. By a slight ex- verdict being taken against him. TENANT FOR LIFE. tension of the rule, as to what are necessaries, an infant's funeral expenses are, for the first time, eonstrued to be comprised within it. 24. This case affords a new illustration of the A TENANT for life cannot, it seems, lay out maxim cited from Lord Bacon's work. It moneys in building or improvement on the shows the operation of that maxim may for estate, and charge them on the inheritance; some purposes continue even after the relation and, therefore, a court of equity will not diwhich gave it efficacy has ceased to exist. rect an inquiry what sums were expended by The court proceeded upon the principle that the tenant for life in substantial improvethere grows out of the contract of marriage ments beneficial to the inheritance. Vice a continuing identity, which survives the Chancellor Wigram, in deciding this, noticed death of one of the parties; and concluded the principal cases on the point. "I am of that as the husband's funeral expenses were opinion that I ought not to make the order necessaries for him, so his funeral expenses for the reference which the defendants seek in were necessaries for the wife; and, conse- this case. I was referred to the case of Hibquently, she having contracted for them, herbert v. Cook, Sim. & Stu. 552, as an authorinfancy afforded no defence. From this case ity for an inquiry; but in that case Sir John appears the funeral expenses of a lawful Leach refused to direct an inquiry of the exchild are personal necessaries, for which an infant parent may be sued. it THE lawyers have had a part of Lincoln's Inn Square laid out as a garden; simply (says Punch) because, as lawyers, they like to make the most of all that's green. penses incurred by the tenant for life, in repairs to the mansion house, which had been rendered necessary owing to the dry rot, although the inquiry was not opposed. If the mansion house was affected by the dry rot, it remove it; but the court, in Hibbert v. Cooke, would certainly be a substantial improvement to said, that it was an expense to which a tenant for life, choosing to occupy the property, must Practical Points.-Vendor and Purchaser-Alien.-Profert, and Inspection of Documents. title, and it is not till the end of the year 1840, this having occurred in 1839, that the matter is broken off."-Eyston v. Symonds, 1 Yo. & Col. 608. PROFERT, AND INSPECTION OF submit. I do not know how to consider that it is not necessary to decide that if at the mocase otherwise than as overruling Graves v. ment the vendor discovered the defect, the Graves, M. R., March, 1822, cited Sim. and purchaser had held his hand, and had said—a Stu. 553. I do not mean to lay it down as material fact has been concealed and withheld an imperative rule, that no case could arise in from me, and therefore I refuse to complete which the court would sanction the expendi- the purchase-it is possible under such cirture of moneys by a tenant for life, for the cumstances, that he could not have been combenefit of the inheritance, by making such pelled to complete it. I, however, do not deexpenditure a charge upon the inheritance. cide that point. Instead of so acting, the The case may be suggested, of a devise of parties continue in negotiation, in the course lands in strict settlement, and a direction to of which a further opinion is taken on the lay out a personal estate to the same uses: it might be more beneficial to the remaindermen, that a part of the trust fund should be applied to prevent buildings on the settled estate from going to destruction, than that the whole should be laid out in the purchase of other lands. Other like cases might be supposed. In Bostock v. Blakeney, 2 Bro. C. THE right to inspect documents pendente lite C. 656, Mr. Justice Buller, sitting for the is one in respect of which the books of praclord chancellor, directed, at the hearing of tice are somewhat at variance, and which it is the cause, an inquiry what substantial and often essential to the administration of juslasting improvements had been made by the tice, should be clearly understood. tenant for life of the estate; but the decree In actions founded on instruments under was re-heard by the lord chancellor and re-seal, or where a defendant justifies or excuses versed on this point; and in the case of Nairn v. Marjoribanks, 3 Russ. 582, the court was asked to direct a reference whether it would be for the benefit of the parties interested in the property, that a new roof to the mansion house should be constructed at the expense of the testator's estate; but Lord Eldon refused to make an order upon the petition, observing, that he would not confirm the report, even if the master should find that it would be beneficial to all parties. I do not think that the alleged fact of the insufficiency of the personal estate of testator in this case affects the question. Caldecott v. Brown, 2 Hare, 144. himself under an instrument under seal, the pleadings should make profert of the deed; and it was decided in a late case in the Court of Exchequer, Hodgson v. Warden, 13 Mee. & W. 22, where, in answer to a declaration on a promissory note, the defendant pleaded an assignment to trustees for the benefit of creditors, and averred as an excuse for not making profert, that the deed of assignment was in the hands of the trustees, who refused to permit the defendant to have the possession, that the excuse was insufficient, as the defendant was a party to the deed, and beneficially interested under it. On the other hand, where a party sued as a surety pleaded a release from the plaintiff to his principal, it was holden that the defendant was not obliged to make profert of the instrument, as there A PERSON Contracted to sell an estate, who, at was no privity of interest between the printhe time of the contract, had no legal or equit- cipal and surety, and a party is not required able title to it, by reason of the party through to make profert of an instrument to the poswhom he claimed being an alien. The pur- session of which he is not entitled. chaser, by his own inquiries, ascertained the Parke, B., Bain v. Cooper, S Mee. & W.571. defect of title, but did not, till after some Instruments, in respect of which profert is months of negotiations with the vendor, re-made, are supposed to remain in court during pudiate the contract. The vendor then filed the term in which they have been pleaded, and his bill for specific performance, and pending therefore the party against whom a deed is the investigation of the title in the master's pleaded, is clearly entitled to inspect the deed office, obtained a grant of the estate from the whilst it is supposed to be in court, and if Sir Knight Bruce, V. C., held that any practical difficulty was found in asserting he was entitled to a decree. "It appears to the right, it would be the duty of the court me very possible," said his honor, "though to enforce it. But where a party VENDOR AND PURCHASER-ALIEN. crown. Per claims un In Chancery.-Mallory and Hunter v. Vanderheyden and wife. der, or relies upon a document not under that the signature to the contract was not seal, the adverse party has no right to exam- written by the defendant, or with his authorine the instrument, although the courts of law, ity, and calling upon the plaintiff to show in the exercise of an equitable jurisdiction, cause why the contract should not be deposited and where the application appears clearly to with one of the masters of the court, with a view be for the advancement of justice, frequently to the inspection of the document by the interpose to afford the party interested an op- defendant, his attorney, and witnesses. In portunity for inspection. Applications of showing cause against the rule, it was admitthis description are usually made at chambers ted that the defendant was entitled to an inand not in open court; Vaughan v. Frement, spection of the contract in the hands of the 2 Dowl. 299, a circumstance which increases party to whom it belonged, and the only conthe difficulty of ascertaining upon what prin- tention was, whether it should be taken out ciple any particular application has been of his possession. Tindal, C. J., in delivering granted or refused. Lord Mansfield is said the judgment of the court, observed, that he to have laid down the rule, that whenever a was not aware of any instance in which a defendant would be entitled to a discovery in plaintiff was compelled to deposit a contract. equity, he ought to be allowed an examination with the masters; but the rule was made abof the documents in a court of law; Tidd's solute for an inspection by the defendant and Prac., 9 ed., 591; and this rule appears to his witnesses in the usual way, upon payment have been recognized and adopted as a guide of costs. by many succeeding judges in the exercise of their equitable jurisdiction. It is stated inaccurately, in some of the books of practice, that where a written contract is declared upon, the courts will not compel an inspection of the Before the Honorable AMASA J. PARKER, Vice instrument upon the suggestion that it is In Chancery. Chancellor of the Third Circuit. NUS VANDERHEyden and LeucHY HIS WIFE. APPOINTMENT, BY FEME COVERT, OF HER SEPA- forged. The authority for this rule is a dic- JOEL MALLORY AND JOHN HUNTEr v. Levitum of chief justice Eyre, in the case of Chetwind v. Marnell, in the year 1798, "that it would be a violent measure to order the plaintiff to produce an instrument which might be the means of convicting him of a capital felony." The ground suggested by the learned chief justice, seems a very unsatisfactory reason for subjecting a party in a civil action to the consequences which may result from the establishment of a fabricated document, and if correctly reported, Chetwind V. Where a debt is contracted by a woman dum sola, with the expectation, on the part of the creditor, of payment out of her separate property, and both before and after her marriage she promises to pay it, and consents that it be paid by an executor having property in his hands belonging to her, by ap plying it on a note due from the complainants to the estate, it is a sufficient appointment by her as a feme covert, to charge her separate property in equity with the payment of the debt. A discharge of the husband in bankruptcy, although a bar to a suit at law against husband and wife, brought for the recovery of the debt of the wife contracted dum sola, is no defence to a bill filed to obtain satisfaction out of her separate estate, where there has been an appointment by her in equity charging her separate estate with the payment of the debt. Marnell can have been but little considered: for, as pointed out in a note in a number of Messrs. Manning and Granger's Reports, p. 277, the action was brought upon a bond of which the plaintiff must have made profert, and to which the defendant pleaded non est factum, although the fact that profert was made was not once adverted to, either by the counsel for the defendant or the court. Be this as it may, in more modern times an inspection has been frequently granted upon the suggestion that the document is a forgery. In a late case of Thomas v. Dunn, 6. Man. & Gran. 264, where an action was brought on a written contract to employ the plaintiff as the THE bill charged that the complainants were agent of the defendant, for the purpose of es- copartners in trade, doing business in the tablishing and conducting the Chinese Exhi- city of Troy, and that defendant, Leuchy bition, a rule was granted by the Court of Vanderheyden, when sole and unmarried, and Common Pleas, founded upon an affirmation between the 30th April, 1835, and the 6th A dictum of Chief Justice Parker in Miles v. Williams, 1 Peere Williams 257, holding a contrary doctrine, reviewed and its correctness denied. |